DECISION ON SERBIA AND MONTENEGRO’S MOTION
TO VACATE OR SUSPEND 9 MARCH 2006 DECISION AND
REQUEST TO REDACT PARTS OF PUBLIC VERSION OF
DECISION

_________________________________________________

Office of the Prosecutor:

Ms. Carla Del Ponte
Mr. Geoffrey Nice

Amicus Curiae:

Prof. Timothy
McCormack

Government of Serbia and Montenegro:

Ms. Sanja MilinkovicMr. Sasa Obradovic
Mr. Vladimir Cvetkovic

THIS TRIAL CHAMBER of the International Tribunal
for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed
in the Territory of the former Yugoslavia since 1991
(“Tribunal”) is seized of a “Motion
to Vacate or Indefinitely Suspend the Trial Chamber’s ‘Decision
on Applications of Serbia and Montenegro Pursuant
to Rule 54bis’ Issued on 9 March 2006”
and a “Submission for Redaction of Certain Parts of
the Trial Chamber’s ‘Decision
on Applications of Prosecution and Serbia and Montenegro
Pursuant to Rule 54bis’
Issued on 9 March 2006” and hereby renders a decision
thereon.

I. Introduction

1. On 9 March 2006 the Chamber filed a decision on
various requests for relief made by the Prosecution
and Serbia and Montenegro under Rule 54 bis (“Rule
54
bis Decision” or “Decision”).1
The Decision granted many of the Prosecution’s requests
for relief and ordered Serbia and Montenegro to produce
various documents (or, in the event of non-production,
to provide explanations of the steps taken to locate
the documents) by 23 March 2006. The Decision also
denied Serbia and Montenegro’s request for protective
measures for certain documents that were to be produced.

2. The Decision was filed confidentially but stated
in the disposition that:

[The] status of this Decision will change from confidential
to public in 7 days [i.e. on 16 March], but the
Chamber invites any party to the case and Serbia
and Montenegro to file submissions before the expiration
of this time-period identifying specific passages
in the Decision which should be redacted, if any,
and the basis on which such redactions should be
made.

3. On 14 March the Chamber issued an order terminating
the proceedings due to the death of the Accused
(“Termination Order”).2

4. On 15 March Serbia and Montenegro filed a motion
requesting that the Trial Chamber either (i) vacate
or “suspend
indefinitely [the] execution” of the Rule 54 bis
Decision or, in the alternative (ii) “suspend
the execution” of the three
rulings in the Decision that deny Serbia and Montenegro’s
request for protective measures, pending an application
by the state for review of these rulings by the Appeals
Chamber (“Motion to Vacate” or “Motion”).3
Serbia and Montenegro also filed a request for redactions
to be made to the text of the Rule 54 bis Decision
in the event that the Decision was made public (“Request
for Redactions”).4

5. One week later, the President issued an order assigning
this Trial Chamber to consider the Motion to Vacate
and Request for Redactions (“Assigning Order”).5

6. Then, on 29 March 2006, the Prosecution filed a
response to the Motion to Vacate and Request for
Redactions (“Response”).6

7. Serbia and Montenegro filed a reply to the Prosecution
Response (“Reply”), along
with a request for leave to file it, on 4 April 2006.7

8. That same day, the Prosecution filed a pleading
withdrawing the submissions made in its Response
(“Withdrawal
of Submissions”).8

II. Motion to Vacate

9. Serbia and Montenegro argues that, under the terms
of the Termination Order that ended proceedings
in the Milosevic case, only decisions granting
protective measures continue to have effect.9
The Rule 54 bis Decision was filed before termination
but did not become
“final” before termination because neither the time
for compliance with the Decision, nor the time for
filing an appeal or request for review of the Decision,
had expired.10 And because,
the state argues, it is “now not capable of becoming
final,” the Decision “cannot
have any legal effect.”11 In
support of this argument, the state cites a decision
in the Kovacevic case
in which the Appeals Chamber terminated an interlocutory
appeal that was pending because proceedings in the
case had been terminated.12

10. Alternatively, the state argues, even if the Decision
is still valid, the termination of the proceedings
means that it has been “deprived of its purpose.”13
One of the requirements for granting an order for the
production of documents or information under Rule
54 bis is that the documents or information
be relevant to “any matter in issue before the Judge
or Trial Chamber” and “necessary for a
fair determination of that matter.”14
Once proceedings are terminated in a case, the state
asserts, “this requirement
… even if previously satisfied, cannot be considered
as fulfilled any more.”15 In
conclusion, the state requests that the Rule 54 bis Decision
be vacated or that its execution be indefinitely suspended.16

11. In its initial response, the Prosecution argued
that the Motion to Vacate should be denied. The death
of the Accused, the Prosecution argued, “has no impact
on the ongoing validity and importance” of the Rule
54 bis Decision and the
Trial Chamber should “order [Serbia and Montenegro]
to comply with it and produce the requested documents.”17 Alternatively,
the Prosecution “request[ed] that the Trial Chamber
issue a new order pursuant to Rule 54” in which it
would “order [Serbia and Montenegro] to comply with
the Trial Chamber’s [Decision] and immediately produce
the documents requested therein.”18

12. In its 4 April 2006 filing, however, the Prosecution
withdrew all of these submissions. According to
this filing, the Prosecution has reached an agreement
with the state that “documents will be provided,” and
therefore considers that “the question of
the continuing validity of the [Decision], or its
substitution by another order in similar terms, is
now moot.”19

III. Request for Redactions if Decision is to Become
Public

13. In its Request for Redactions, Serbia and Montenegro
explained that “in the extraordinary
circumstances of the present case, it is not certain
whether the [Rule 54 bis] Decision would be
[made public] or not,” but that “out
of an abundance of caution
” it decided to file a request for redactions.20

14. The state submits that if the Trial Chamber decides
that the Decision should become public notwithstanding
the termination of the proceedings, the Chamber should
redact from the public version of the Decision (i)
the parts of the decision that relate to Serbia
and Montenegro’s motion for protective measures,
and (ii) the parts of the decision that relate to
the Prosecution request for the production of the
personnel file of Ratko Mladic.21

15. In its response, the Prosecution submits that the
Request for Redactions should be denied because there
are “[n]o
grounds for confidentiality of the [Decision].”22

16. In its filing of 4 April 2006 the Prosecution withdrew
its “submissions on the continued
validity of the Trial Chamber’s Decision” but did not
explicitly address the status of its submissions on
the question of redactions.23
The filing does state, however, that the Prosecution “hereby
withdraws the prosecution submissions filed on 29
March 2006”, and this includes submissions on the state’s
Request for Redactions.24

IV. Discussion

17. As a preliminary matter, the Trial Chamber notes
that it is validly seized of the Motion to Vacate
and the Request for Redactions by virtue of the Assigning
Order issued by the President of the Tribunal.

18. The Chamber also notes that although its Rule 54 bis Decision
was rendered prior to the death of the Accused and
the termination of proceedings in the Milosevic
case, the Decision set a deadline of 17 March 2006
for the Decision to become partly or fully public,
and a deadline of 23 March 2006 for compliance with
the Decision by the state. Both deadlines turned out
to be after the Accused’s death
and after the Chamber’s Termination Order was issued.

19. In its Termination Order this Chamber “terminate[d]
all proceedings in this trial.”25 The
only exception to this order was its confirmation of
the provision in Rule 75(F)(i) that all the protective
measures ordered during the course of the proceedings “shall
continue to have effect unless and until they are rescinded,
varied or augmented.”26
From the date of the Termination Order, then, the Rule
54 bis Decision—not
being one that granted protective measures to witnesses
or documents—was no longer
operative. Its status at that time was that it had
not yet been complied with and had not yet become
public, and that status cannot change. In light of
this, it is not necessary for the Chamber to “vacate” or “suspend” the
effect of the Decision today. Nor, for the same reason,
is it necessary for the Chamber to consider the Request
for Redactions. As a result, Serbia and Montenegro’s
requests for relief will be dismissed.

V. Disposition

20. For these reasons, pursuant to Rule 54 and Rule
54 bis,
the Trial Chamber hereby:

(a) GRANTS Serbia and Montenegro’s request for
leave to file its Reply;

(b) DISMISSES as unnecessary Serbia and Montenegro’s
Motion to Vacate, and

(c) DISMISSES as unnecessary Serbia and Montenegro’s
Request for Redactions.

Done in both English and French, the English text being
authoritative.

Judge Robinson
Presiding

Dated this twelfth day of April 2006
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Decision
on Applications of Prosecution and Serbia and Montenegro
Pursuant to Rule 54 bis, Case No. IT-02-54-T, 9 March
2006.
2 - Order
Terminating the Proceedings, Case No. IT-02-54-T, 14
March 2006.
3 - Serbia
and Montenegro’s Submission for Redaction of Certain
Parts of the Trial Chamber’s “Decision on Applications
of Prosecution and Serbia and Montenegro Pursuant to
Rule 54bis” Issued on 9 December 2005 [sic], Case No.
IT-02-54-T, 15 March 2006.
4 - Serbia
and Montenegro’s Motion to Vacate or Indefinitely Suspend
the Trial Chamber’s “Decision on Applications of Serbia
and Montenegro Pursuant to Rule 54bis” Issued
on 9 December 2005 [sic], Case No. IT-02-54-T, 15 March
2006.
5 - Order
Assigning a Case to a Trial Chamber, Case No. IT-02-54-T,
22 March 2006.
6 - Prosecution
Submission on the Continued Validity of the Trial Chamber’s
Decision of 9 March 2006 Pursuant to Rule 54 bis, Case
No. IT-02-54-T, 29 March 2006. 7 - Serbia
and Montenegro’s Reply to “Prosecution Submission on
the Continued Validity of the Trial Chamber’s Decision
of 9 March 2006 Pursuant to Rule 54 bis,” Case No.
IT-02-54-T, 4 April 2006. The Trial Chamber believes
that its decision on the Motion and Request for Redactions
is aided by consideration of all the arguments raised
by the parties and therefore grants the state’s request
for leave to file its Reply. 8 - Withdrawal
of Prosecution Submissions on the Continued Validity
of the Trial Chamber’s Decision of 9 March 2006 Pursuant
to Rule 54 bis, Case No. IT-02-54-T, 4 April 2006.
9 - Reply,
paras. 6 and 8.10 - Id.
at para. 7.11 - Id.12 -
Reply, para. 8.13 - Motion
to Vacate, para. 2.14 - Id.15 - Id.
(emphasis added).16 - Id. at p. 3. In the
alternative Serbia and Montenegro requests a stay of
the three rulings in which the Chamber denies the state’s
request for protective measures. 17 - Id.18 - Id.19 -
Prosecution Withdrawal of Submissions, para. 2.
20 - Request
for Redactions, para. 3.
21 - Specifically,
the state seeks to redact: (i) the words “and an application
by Serbia and Montenegro for protective measures” in
the preamble; (ii) paragraphs 6-10, 15, 19-21 and 25
of the Decision (including subtitles and footnotes);
(iii) rulings 1, 4, 5 of the Decision (at pages 1,
4 and 5 of Annex A) (including accompanying text and
footnotes), and (iv) ruling 6 (at pages 6 and 7 of
Annex A). Request for Redactions, para. 4. See also
id. at para. 5 (stating basis on which redactions
should be made).
22 - Prosecution
Response, para. 21. See also id. (arguing that
Serbia and Montenegro’s proposed basis for redactions
should be rejected). 23 - Prosecution
Withdrawal of Submissions, Title.
24 - Id.
at para. 3.25 - Termination
Order, p. 1.26 - Id.